Is an employer entitled to take the position that an employee
has resigned if she advises that she does not know when she will be
returning to work (as a result of a significant personal crisis)
and fails to stay in contact with the employer in the ensuing
weeks? This issue was recently considered by the British Columbia
Supreme Court in Beggs v. Westport Foods Ltd
In Beggs, the employee's home was destroyed by fire in
February, 2010. The following day, the employee telephoned the
employer to advise of the fire and said that she would not be
coming into work and did not know when she would return. Over the
next month, the employee was consumed with sorting out her
insurance claim, finding a place to rent and arranging for her home
to be replaced. During this period the employer tried to contact
the employee on two occasions, but her phone was disconnected. As a
result, the employer prepared and filed a Record of Employment
indicating the employee had quit.
In early April, the employee was diagnosed with severe
depression and obtained a note stating that she was unfit to work.
When she contacted the employer to advise of her medical leave, she
learned about the ROE. She attended at the employer's premises,
and was given a copy of the ROE for the first time, and her final
After the employee obtained legal counsel, the employer advised
the employee through its counsel that she could return to work, and
upon her return the employer would "advise her regarding her
work schedule and her employer's expectations regarding the
The employee never returned to work. Instead, she commenced a
lawsuit alleging wrongful dismissal. In response, the employer
argued that the employee had resigned and, further, had acted
unreasonably in failing to return to work when invited to do
The court sided with the employee, concluding that the evidence
did not establish a clear and unequivocal resignation, and that she
had in fact been terminated by the employer. Further, the court
held that the offer to return to work was ineffective, because it
did not make clear to the employee that she was being offered her
old job back on the same terms and conditions.
The court awarded the employee, who had worked for the employer
for 10 years, 11 months' pay in lieu of notice. Significantly,
the court also required the employer to pay $20,000 in compensatory
damages for breaching its duty of good faith in the manner of
termination. Here, the court was troubled by the fact that the
employer had not made genuine efforts to determine the
employee's status (her phone was only disconnected for a short
period of time), and instead issued the ROE stating she had quit,
which might have jeopardized her ability to receive EI payments. In
making the award, the court concluded the employer's conduct
had exacerbated the anxiety and depression which the employee
suffered following the loss of her home.
Beggs illustrates the dangers of taking the position that an
employee who fails to report to work has quit, even where the
employee is absent for many weeks and unreasonably fails to
communicate with the employer about his or her status. Here, the
employer made several mistakes: not doing more to reach out to the
employee (including advising that it had filed the ROE), and not
taking her back unconditionally when it learned of her medical
Where an employee fails to stay in touch, an employer must make
all possible efforts to speak to him or her, and tell the employee
that it will be taking the position the employee has resigned if
the employee does not contact them or otherwise return to work in a
reasonable time. Assuming the employee has quit (without speaking
to the employer) may seem a convenient solution, but as Beggs
indicates, it is a risky one. After reaching out to an employee,
only after a reasonable amount of time has passed and the employee
has not returned to work, will an employer have a plausible
argument that the employee has resigned, or has abandoned his or
her employment. However, in cases where the absence was in any way
related to a medical issue, the safest course is typically not to
take that position at all and instead reinstate the employee, or
place him or her on a medical leave.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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